Monday, June 1, 2015

Decision from Senate majority leader to vote on NSA reform appears to clear way for passage of bill that would curb bulk collection of Americans’ phone records.

The Senate majority leader agreed on Tuesday to hold a vote that could deliver the first rollback of US government surveillance on its own citizens in at least a generation, avoiding what appeared to be a looming war in the conservative congressional leadership over landmark -- if still limited -- reform as a result of the Edward Snowden disclosures.

The Senate will vote this week on the USA Freedom Act, which passed the House of Representatives last week with a vote of 338-88, majority leader Mitch McConnell announced on Tuesday.

The decision represented a rare congressional defeat for US security agencies and a pitched retreat by McConnell and his Senate Republican colleagues, who had preferred to extend existing surveillance law. McConnell faced a 1 June deadline for the expiration of key provisions of the Patriot Act, which the government has used since the George W Bush administration to justify the dragnet collection of domestic phone records.

Any extension of the Patriot Act undertaken by McConnell would have required support in the House to take effect -- support that House majority leader Kevin McCarthy declined to extend on Monday.

McConnell's decision could clear the way for the passage of the USA Freedom Act, which would break up the so-called "haystack" of domestic phone records out of the possession of intelligence agencies and into the possession of telecommunications companies, and change the process for querying the data, among other measures.

But the majority leader cast doubt over whether there would be enough votes within his caucus to advance the bill, since the majority of Senate Republicans still preferred a clean renewal of the Patriot Act.

While passage of the first drawdown of government surveillance authority in decades was not guaranteed, the White House said Barack Obama would sign the legislation.

Under the reform, however, the National Security Agency would still be able to acquire thousands of call records based on a single court order.

Limitations on wholesale reform

Many privacy groups lament that the legislation McConnell has now agreed to move to the Senate floor provides an insufficient response to two years' worth of outrage over widespread US surveillance. The US government has long held up section 215 of the Patriot Act to justify the dragnet collection of American phone records, but the first program was first revealed last June by the Guardian based on documents obtained from Snowden.

The bipartisan architects of the USA Freedom Act in the House of Representatives have for months predicted boxing surveillance advocates into the untenable position in which McConnell found himself: under the pressure of a wholesale loss of a Patriot Act provision beloved by the FBI but without the votes to reauthorize the provision unless they sacrificed the NSA's daily collection of millions of US phone records.

Since the House voted overwhelmingly last week to pass the USA Freedom Act, opposition mounted to McConnell's preferred alternative of an unabridged reauthorization of what is known as the Patriot Act's Section 215. McConnell lacked the votes for a two-month extension of Section 215 in the Senate and the House considered it a nonstarter. New polls showed broad and deep bipartisan antipathy to broad government surveillance.

Yet the USA Freedom Act only bars the use of section 215 for collecting US phone data in bulk. Other domestic surveillance authorities, including the DEA's recently disclosed bulk phone records collection, would remain untouched, as would the NSA and FBI's ability to search without a warrant through its bulk of internet content and metadata for Americans' communications.

Several privacy groups and civil libertarians have warned that their congressional allies are selling the retention of section 215 too cheaply.

The White House reiterated its support for the House-passed bill on Tuesday, saying Barack Obama would sign it into law if it came to his desk.

"It was obviously the product of important, difficult, bipartisan work to reach a compromise that would ensure that our national security professionals would continue to have the tools they need to keep us safe, while ensuring that we are going to greater lengths to protect the privacy and civil liberties of the American people," Josh Earnest, the White House press secretary, told reporters at his daily press briefing.

Pointing to the legislation's overwhelming passage in the House, Earnest added it was the "only path" for the Senate to prevent a lapse in the authorities granted by the Patriot Act that would in turn pose a risk to national security.

The future of spying -- and the presidency

The future of spying under the Patriot Act was already threatened, whatever Congress did next. A circuit court ruled earlier this month that Section 215 did not, in fact, permit the dragnet collections of US phone records. That followed a January 2014 finding by the Obama-appointed watchdogs at the Privacy and Civil Liberties Oversight Board that bulk phone records collection had not stopped terrorist attacks and had "limited value" in combatting terrorism more broadly.

McConnell's decision went against vocal warnings in recent weeks from presidential candidates and prospective candidates that surveillance programs should be left unmolested.

"All these fears are exaggerated and ridiculous," New Jersey governor Chris Christie said on Monday of concerns about privacy abuses. "There is not a single documented case of abuse of this program," Florida Senator Marco Rubio wrote in USA Today last week. "The debate has gotten off track," former Florida governor Jeb Bush said earlier this year.

An exception was Senator Rand Paul, who at a campaign stop in Philadelphia on Monday said he would "do everything possible" to curtail surveillance.

"Here in front of Independence Hall, I call on the president to obey the law," said Paul. "They have the votes inside the Beltway. But we have the votes outside the Beltway, and we'll have that fight."

An open question under the USA Freedom Act is whether energetic lawyers for the intelligence agencies will accept the loss of the bulk collection program or seek to cobble together a retention through a patchwork of different legal authorities.

Such lawyerdom is how the NSA in 2006 transformed section 215's allowance to collect data "relevant" to an ongoing investigation into the ongoing bulk collection of US phone data -- a construction that a federal appeals court rejected as illegal earlier this month.

Over the past month, intelligence lawyers have insisted they will not launch such a gambit.

"It is not going to happen," Robert Litt, the attorney for Director of National Intelligence James Clapper, told a panel discussion in Washington on 8 May.

"It would be a brave intelligence official who would say we're going to go ahead and recreate a bulk collection program," Litt said.

Civil liberties attorneys are not as sanguine.

"No matter how high and thick the wall we build," said Jameel Jaffer of the American Civil Liberties Union, "NSA is going to spend enormous resources trying to get over the wall, under the wall, around the wall or through the wall."

A U.S. judge on Thursday blasted the Obama administration's motion to dismiss a lawsuit brought by Republicans in the U.S. House of Representatives over the implementation of the Democratic president's signature healthcare law.

Republicans in the House filed a lawsuit in November, saying administration officials unlawfully bypassed Congress.

At issue are executive changes authorizing Treasury payments to healthcare insurers without the funding being agreed by Congress and delaying implementation of the law's employer mandate, which required employers with more than 50 employees to provide healthcare coverage.

U.S. District Judge Rosemary Collyer, appointed by Obama's predecessor, Republican George W. Bush, repeatedly interrupted U.S. Justice Department lawyer Joel McElvain during the hearing in the U.S. District Court for the District of Columbia.

Justice Department lawyers argue that the House lacks standing to sue, citing a section of U.S. law that means the House would have to prove it has been directly harmed.

"So it is your position that if the House of Representatives affirmatively voted not to fund something ... then that vote can be ignored by the administration, because after all, no one can sue them?" she asked.

McElvain argued that the merits of the case were not being discussed at the hearing, and that any perceived injury was "abstract."

"I'm not asking you to give me your brief. I want you to explain ... why it's not an insult to the Constitution?" Collyer said.

McElvain argued that the House could pass new legislation if it disagreed with the administration's changes, which he said were legal under "pre-existing permanent appropriation."

At another point, Collyer admonished McElvain: "You can't just shake your head and not deal with the question."

The lawsuit is one of a flurry filed against the Obama administration in the past few months challenging executive actions on healthcare and immigration as Republicans seek to amp up pressure on the president.

Jonathan Turley, a lawyer for the House Republicans, said the lawsuit should go forward to show the power of the purse "should not be decorative."

The judge, while appearing sympathetic to the Republicans' decision to bring the lawsuit, said she had not yet decided on the standing issue before her.

The case is United States House of Representatives v. Burwell et al, U.S. District Court for the District of Columbia, No 14-1967